The California Supreme
Court yesterday agreed to decide whether a rape charge filed just prior to the
expiration of the six-year limitations period was timely, where the defendant
could only be identified at the time by his DNA profile.

At their weekly
conference in San Francisco, the justices unanimously granted Paul Eugene Robinson’s
petition for review. The Third District Court of Appeal, in an Oct. 26 opinion,
affirmed Robinson’s convictions on charges of forcible oral copulation, two
counts of penetration with a foreign object, and two counts of rape in
connection with an August 1994 attack on a Sacramento woman.

The case was prosecuted
on the basis of a felony complaint filed in August 2000, four days shy of six
years from the date of the attack, charging “John Doe,” an “unknown male” with
a specified 13-locus DNA profile developed from semen taken from the victim.

About three weeks after
the complaint was filed, the state Department of Justice lab reported a “cold
hit,” matching a DNA profile taken from Robinson in 1999 while he was serving
time for spousal battery in a county facility. An amended warrant, inserting
Robinson’s name in place of the John Doe identification and DNA profile, was
issued and he was arrested within days.

The criminal complaint
was similarly amended to name Robinson as the defendant, and to add multiple
felony charges involving another victim. After failing to obtain a dismissal on
statute of limitations grounds, the defense argued at trial that the DNA
evidence was insufficiently reliable to establish guilt.

Prosecutors presented
expert testimony that the probability of a 13-loci was one in 650 quadrillion
in the African American population, one in six sextillion in the Caucasian
population, and one in 33 sextillion in the Hispanic population—The victim
testified that her attacker could have been Hispanic or a light-skinned African
American—and that there were no reported cases of two people matching at all 13
loci other than identical twins.

Jurors convicted
Robinson on the five counts arising from the 1994 attack and found that he used
a knife during the commission of the offenses. The other charges were dismissed
after jurors deadlocked.

Judge Peter Mering
sentenced Robinson to 65 years in prison, the maximum on each count and each
enhancement allegation, describing the defendant—who had been allegedly
convicted of 15 felonies that could not be used for enhancement purposes
because they occurred after the 1994 incident—as a sophisticated serial rapist.

On appeal, Justice
Coleman Blease said the prosecution was timely under Penal Code Sec. 804(d),
which stops the limitations clock when an arrest warrant is issued “provided
the warrant names or describes the defendant with the same degree of
particularity required for an indictment, information, or complaint.”

Sec. 815, the justice
noted, specifically permits the use of warrants designating the suspect by a
fictitious name as long as the person is described with the required
particularity.

A DNA profile qualifies
as a sufficient description, Blease said, “because DNA is the most accurate and
reliable means of identifying an individual presently available to law
enforcement.”

DNA matching is not
infallible, the justice acknowledged. “But infallibility is not required for
issuance of a warrant...or a charging document,” he wrote, noting that the
Court of Appeal has held that minor descriptive errors in an indictment do not
deprive the trial court of jurisdiction.

“Given the mobility of
our society, the availability of plastic surgery and other medical procedures
and devices that may alter physical characteristics, and the growing problem of
identity theft, unlike a person’s DNA profile, all other identifying criteria
are subject to theft, change, or alteration,” Blease said.

Blease rejected the
defense argument that a DNA profile does not qualify as a description, since it
does not provide information that an officer can use to visually identify the
suspect.

“Defendant confuses the
requirements for issuance of a warrant with those necessary to execute one,”
the jurist wrote.

The high court also
granted review as to whether Robinson might be entitled to a remedy because
spousal battery was not one of the qualifying offenses for which the DNA and
Forensic Identification Data Base and Data Bank Act of 1998 permitted the
taking of a DNA sample.

The Court of Appeal held
in an unpublished portion of its opinion that the violation was not
constitutional in nature and that suppression of the sample was not required.

As to another issue,
whether the methodology used to determine that Robinson was the perpetrator was
so novel that the trial judge should have held a Kelly hearing on its
scientific validity before admitting it, the court granted review but deferred
briefing because a similar issue is before the court in another case.